date

10 July 1805 Evidence Introd
10 July 1805

Evidence

Introd

Ch. Complication Table

'. Equity Cases

When a chain is to a certain degree complex, it becomes altogether incapable of being decided upon by a Jury. To be pronounced by a Jury, a decision must not only [...?] to[?] its[?] grounds be confined to such evidence as can be compressed within the compass of a single sitting, but in its tenor must be such as can be comprized within /the compass of/ a grammatical proposition, of the utmost brevity and simplicity, guilty, not guilty: he did promise, he did not promise, and the like.

In one of its characteristic properties, an English Common law suit resembles an Epic poem, grounded on the laws of Aristotle. The unities of time and place must be observed with no less strictness on the one stage than on the other.

Among[?] the chronical cases which are at present treated with such perfect /consummate/ regularity by a Court of Equity, there is not one, of /in relation to/ which, when presented to view, it could readily be conceived, how the business of society could be carried on, unless provision of some sort or other were made for it, nor how any sort of provision should be made for it, under the forms of Common Law (Non-Equity). that is by any thing that could be done by a Jury.

Trial by Jury, in the sense now put upon the words, it seems generally agreed did not commence at an earlier point /period/ of time than the 13 th century: Equity practice some two centuries at least later. In what way could the business of chronical cases have been treated in that interval? I mention the question as a curious one, not as one that could find its discussion in this place. Suffice it to hint, that from a variety of causes an[?] quantity of cases of this description presenting themselves during that period would be very small in comparison of the present state of things.
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  • Title: [10 July 1805 Evidence (4) Note]
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    Were the /Not the[?]/ complexion of the[?] times favourable, there is nothing /any thing/ in the nature of things /the case/ that should render it more impracticable to the Common Law Courts to make provision some how or other for chronical cases any more than for cases of fraud, trust, and accident. The case of the Action of account might serve for a pattern. If a Court of Equity had its masters, its Remembrancer, the Court of King's Bench too has its Masters, the Court of Common Pleas, its Prothonotaries. If in the Action of Account the opinion of a Jury authorizes /is sufficient to authorize/ the Judgment Quid[?] computet[?], after which the Master of Prothonotary, (if there wer such an action brought) would proceed de die in diem, treating the case as chronical cases are regularly treated in a Court of Equity, if in an Action for partition (an Action in which the Writ called a Writ of partition is the first instrument) neither Common Law Court is altogether in want of powers by which this chronical case might also receive the treatment it requires /suitable to it/, a little /a small [...?]/ of that ingenuity of which under the technical system there never can be any want might serve to extend the Common Law regimen[?] to many perhaps to all, of the chronical cases for which at present the Equity procedure is alone in the habit of providing.

    I say /set out with saying/, were the complexion of the times favourable. But the complexion of the times is no longer favourable to new enterprizes and bold strokes. The [...?] same cases /jealousy/ which prevents ghosts from swarming, which keeps miracles of all sorts from being wrought to any tolerable advantage /which has confined judicial astrology to the very lowest orders/, which renders the making of "magisterial estates" no longer easy in [...?], nor so much as practicable in ministerial offices, puts a negative upon all those exploits in judicature, by which the 17 th Century was so illustriously distinguished. Men shut their eyes upon established impositions, but they will not /don't choose to/ have any new ones.

    Many years ago I remeber hearing of a [...?] on the part of the Court of Common Please, to do business in the quod computet[?] line. The shop is always open, but for /as to/ articles in that way instances are not in use to come to it.

    I have heard of a project in embryo in a Common Law Court, for laying hold of a party should he happen to present himself at a Trial, for clapping a Subpoenâ upon him, and examining him on the other side. But neither have Chancellors and barons in the heavens] above, nor malâ fide suitors in the earth beneath, any thing serious to apprehend from it. What business has a man to be present at the hearing of his own cause? AS the scheme, in the character of a permanent one, went [...?] (for it could not do for more than once) I feel no compunction at betraying it.
  • Title: [10 July 1805 Evidence (3) Note]
    Description: 10 July 1805

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    Peculiar /The peculiar and [...?]/ jurisdiction of a Court of Equity is that which has /takes/ cognizance of chronical causes.

    Could it have been imagined by any unlearned fancy, that the distinction, a distinction rendered palpable by every day's practice, should to this hour have remained invisible to every learned eye.

    Mr Mitford, in his elaborate analysis of the business of a Court of Equity, deservedly looked up to as an oracle by the practisers[?] of those Courts betrays not the slightest suspicion of it. Under /With/ the name /title/ of Lord Riderdale[?], and Lord High Chancellor of Ireland this gentleman, now fills the office of the highest Equity Judge of Equity in that part of the United Kingdom, under a unusual[?] persuasion of a degree of fitness at least equal to that of any Judge who ever sat on any such Bench. Neqin[?] suprâ, sed par negotia.

    This example is but one among so many others that concurr in proving, that under the jurispridential system, to discharge the business of judicature with the highest applause, it is by no means necessary to have any clear conception of the nature of it. Whay should in Equity a Judge, while doing the business of Equity know what the business /practice/ of Equity consists in, any more than a Common Law know what theft is, while he is hanging men for theft? Why should a Judge have any tolerable concenption what the rules of evidence either are or ought to be or are, while he is writing about evidence? See further in[?] title Method, the [...?] rule of evidence.
  • Title: [10 July 1805 Evidence (1) Introd]
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    These cases to the treatment of which this pharmacopoeia of the Common Law (Equity Law) Courts is radically incompetant may be stiled chronical cases. They require the continued action of the operator, during an indefinate length of time.

    Fraud, Trust, Accident constitute the matter of the peculiar jurisdiction of a Court of Equity, observed the first lawyer who bethought himself of a writing a methodical treatise on the business of a Court of Equity. Fraud, trust, accident and so forth has from that time to the present been repeated by each succeeding writer on the same subject.

    Fraud, trust, accident it has in the meantime been discovered constitute who the matter of the jurisdiction of the old Courts that are not Courts of Equity. Since this discovery has been made, no man pretends any longer to know /to be able to conceive/ what it is that constitutes the peculiar business of a Court of Equity in contradistinction to that of a Court of Common Law.